Slippery situation

From the Summer 2010 issue of The News Media & The Law, page 4.

Three months after the Deepwater Horizon spill sent oil spewing into the Gulf of Mexico, many journalists are still jumping through hoops to get access to information about clean-up efforts and damage that the spill has caused.

“The transparency leaves something to be desired,” said Brian Schwaner, a news editor with The Associated Press in Louisiana and Mississippi, who is working on oil-spill coverage.

Though Schwaner said he appreciates what the Coast Guard has done to provide information to reporters and set up trips into the gulf for photographers, the efforts don’t go far enough.

“As the news media, working for the public, we should have unfettered access,” he said.

Ted Jackson, a photographer for The Times-Picayune in New Orleans, has also run into problems accessing areas in order to document the spill. Though he has experienced a couple of outright denials, he said a larger problem is that journalists don’t seek access at all due to “intimidation and lack of opportunity.”

As an example, Jackson cited the fact that captains of fishing boats, which photographers rely on to get out on the water for stories, are increasingly unwilling to work for journalists because they don’t want to risk upsetting and thus losing the income they’re being paid to clean up the spill by BP.

The general counsel for the National Press Photographers Association, Mickey Osterreicher, says he has heard Jackson’s story from several other photographers.

“They don’t want to piss off the hand that might feed them,” he said of the fishermen.

Now that fishing boats aren’t readily available, Jackson said that to get out onto the water, he and many other photographers must rely on the guided tours given by BP or the Coast Guard. But of course a tour only goes where the tour guide wants you to go.

“It’s like trying to do a story on Paris from a tour bus … you just don’t do quality journalism that way,” he said.

The Unified Area Command Policy

The Unified Area Command — the group created to release information about the oil spill from the U.S. Coast Guard, BP, the Fish and Wildlife Service and other spill responders — has said it is doing everything it can to ensure the media has sufficient access to cover the spill on land and at sea. There is an online form media representatives can use to report access complaints and a Joint Information Center was established where 18 to 20 people are tasked specifically with answering media requests.

“We’ve bent over backwards to provide as much information and as much access as possible … the accessibility we provide to the media is unprecedented,” said John Curry, a spokesman for BP.

Though he couldn’t provide hard numbers, Curry, who is himself a former journalist, said that of the media calls he takes only a very small percentage report having access issues. He recommends that any reporter or photographer who is denied access call the Joint Command Center to lodge their complaint.

“People should just call us and if we can make something happen, we will,” he said.

The Safety Zone

One of the hurdles media outlets battled at the beginning of July was a new policy enacted by the Coast Guard that barred journalists from crossing into a 20-meter — 65-foot — safety zone around all Deepwater Horizon booming operations and oil-response efforts taking place in southeast Louisiana.

That policy was revised on July 12 to allow credentialed members of the media inside the zone but members of the public and journalists without credentials must still abide by the 20-meter rule.

“I have put out a direction that the press are to have clear, unfettered access to this event, with two exceptions — if there is a safety or security concern,” said the Coast Guard’s Thad Allen in the release about the policy revision.

The director of the American Civil Liberties Union in Louisiana, Marjorie Esman, said the policy change was a step in the right direction but did not go far enough.

“It’s not just the media who have First Amendment rights,” she said.

Both Esman and Osterreicher expressed concern that members of the public and independent journalists or photographers who don’t work for a major media outlet will be kept from doing their jobs because they don’t have the “credentials” required by the Unified Area Command to get within the safety zone.

Back and Forth

Prior to the safety-zone rule, the Unified Area Command established a policy they said afforded reporters and photographers full access to all public land.

In a memo dated May 31 that was addressed to BP and any personnel dealing with the cleanup efforts, Allen stated that the access policy was that “media shall, at all times, be afforded access to response operations and shall only be asked to leave an area when their presence is in violation of an existing law or regulation, clearly violates the written site safety plan for the area or interferes with effective operations.”

On its website, the Unified Area Command states that it “encourages all Federal, State, local, civilian and contractor employees involved in the Deepwater Horizon response to provide the news media with safe access to view and film response operations, and to interview authorized spokespersons in accordance with the ‘Policy for Media Access’ adopted by the National Incident Commander.”

However, some journalists say the policy on paper hasn’t always translated to the reality in the field.

The AP’s Schwaner said some of the biggest problems his staff has faced are the restrictions on accessing protected coastal islands and airspace. The islands, which he described as marshy areas where animals often live and reproduce, are off limits. So far, no one has been willing to lift the ban on media or the public accessing the area, Schwaner said.

“We’ve protested to everyone in the chain of command, from the person who answers the phone at the Unified Area Command … to the White House,” which responded by writing “‘thank you for your letter’ and then outlining the restrictions again,” he said.

Schwaner said he’s not sure what will happen next in that ongoing battle, but the AP’s general counsel is continuing to monitor the situation.

“I’m not saying BP is orchestrating a cover up,” Schwaner said. “But I do think they are keeping the media at bay.”

BP spokesman Curry said he knows some members of the media complain they’re being intentionally blocked from covering the spill, but disagreed with the perception that the access issues are intentional.

“I would disagree that BP is trying to control the story. I understand the need and desire to have more information,” he said. “It’s easy sitting outside to say that. But sitting inside, it’s a different story.”

‘It just kinda got under my skin a little’

Schwaner said it isn’t just the water that’s proven difficult to access — it’s also the airspace above the gulf.

The Federal Aviation Administration on June 9 issued a policy that stated “temporary flight restrictions are in effect for deepwater horizon/Mississippi canyon … incident cleanup and reconstitution operations” for 3,000 feet over the water surface and that exceptions will be made “on a case-by-case basis dependent upon safety issues, operational requirements, weather conditions, and traffic volume.”

But Jackson said that in May, when The Times-Picayune­ chartered a plane for him to shoot photos of the spill’s effect on the gulf from overhead, a BP contractor answered the phone when the pilot contacted the FAA to request permission to fly lower than the 3,000-foot zone. After the contractor asked who was on board, he refused to grant the request.

“When we said ‘media’ the answer was immediately no,” Jackson said.

It wasn’t the first time the photographer was denied access. A week after the spill started, Jackson ventured to a beach about two-and-a-half hours from New Orleans, where tar balls were said to be appearing on the beach. But when he got there, a sheriff’s deputy blocked access to the beach and initially turned a group of photographers away. It wasn’t until the group placed multiple phone calls to find out who had given the deputy his orders that they were permitted to stand at the edge of a gravel driveway and shoot pictures for about 15 minutes, Jackson said.

“It just kinda got under my skin a little,” he said. “And I never got a clear understanding of who was keeping me off the beach.”

Since that week, reporters and photographers have said access has improved, but there are still obstacles.

Times-Picayunereporter Chris Kirkham said one of his biggest problems is on-the-ground coverage, because there never seems to be someone around who knows what is going on. If they do, they often can’t tell you because they aren’t an authorized spokesperson, he said.

“It’s improving for sure, but the main problem is still that you have to call someone to get an answer,” Kirkham said. “It is also the classic example of: should their priority be communication or actual response? I think they are realizing that communication is an important part.”

Curry though, takes a different lesson away from a very similar analogy.

“When you’re a firefighter fighting a fire, is it more important to figure out where you’re going to stand to pose in the picture or more important to fight the fire?” he asked.

The best the Unified Command Center can do is try to “fight the fire” and provide people information at the same time.